Technology and Digital Media Lawyer & Attorney : Davis Wright Tremaine Law Firm : Ecommerce, Outsourcing, Web 2.0

Two leading advocacy groups filed a complaint today with the Federal Trade Commission in an attempt to force the FTC to take a "proactive stance."  Joining the Center for Digital Democracy in the complaint is the U.S. Public Interest Research Group. Those groups currently are pursuing an FTC complaint about behavioral targeting generally. They argue that marketers should not track people's Web-surfing activity for the purpose of compiling profiles about them without first obtaining their consent.  The Federal Communications Commission already prohibits marketers from sending text message ads to consumers without their opt-in consent, but some other types of nascent mobile ads--such as wireless application protocol banners or search ads--are not similarly restricted.  the Center for Digital Democracy hopes to influence policy now, while the mobile ad market is still in its infancy. Specifically, its complaint calls on the FTC to create a task force that will include consumer representatives and industry leaders to craft a marketing regime that gives priority to privacy.  Although, to me, this is just an empty gesture to get attention, it reinforces once again the nervousness regarding behavioral advertising. 

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Cnet reports on comments made at Digital Hollywood by the Washington Post Executive Editor of their online division.  Essentially, Jim Brady said (and confirmed after) that he thought the best way to elevate discourse in the comments sections was to force individuals to identify themselves in order to post.  Like spam, griefers and other abusers of the comment sections have created problems for major media organizations.  The media organizations either have to block comments or overfilter -- in which case they get accused of being elitist -- or they open up the comments to very few restrictions -- in which case the quality of the discourse goes down and people revert to name calling and other sorts of ugliness.  I come down on the side of hoping that media organizations will do everything they can to preserve the open and anonymous nature of commenting, but as someone who avoids reading and making comments in many cases because of the level of discourse, I hope we can find a solution that will work.

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• The web is still a hit driven business just like television and the rest of old media (and the success-failure rate is probably even worse). 
• Because of the flexibility of the medium and the ability to get instant and accurate metrics, the web piece of a multi-platform content roll out can be the most profitable element
• Consistent with what I've heard at other conferences, large media organizations are using user generated content channels to scout for talent
• For producers who started as independents, but were purchased by a large media or entertainment organizations, there are often growing pains when dealing with the "bureaucracy" of the large organization.  In particular, some of the panelists felt that being part of a large organization inhibited their ability to produce comedy
• One of the most exciting things about web productions is that participants are experimenting with deal structures and, therefore, the parties can reallocate the risk and try new productions.  One panelist said, these changing deal structures had the possibility of making entertainment and media more inclusive because it allowed productions to get made that couldn't be made otherwise.
• An excellent question posed by the moderator that wasn't answered adequately, in my view, was whether or not large media and entertainment companies could survive with their large overheads and mass advertising models in a world where entertainment continued to target narrower and narrower niches.
• The importance of trusted sources that can filter and recommend content and the importance of brand evangelizers and self promotion of content can't be overstated

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Our brother blog, the Broadcast Law Blog, has a nice summary of the FCC holding that the 700 Club and TMZ are not subject to the Equal Time rules because they are bona fide news organizations.  Admittedly this is not technically a digital media issue, but I think it's interesting for two reasons.  First, it shows just how pervasive the celebrity culture has become (it even made the front of Atlantic Magazine) and, in some ways, legitimizes the Perez Hiltons and other gossip websites.  Second, I think it may suggest interesting frameworks for determining how to apply the journalist's privilege and other media protections to digital media and Internet organizations -- currently an issue that continues to confound most people.

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Amazon.com sued New York state and its taxation department today to contest the constitutionality of a new state law requiring out-of-state Internet retailers to collect New York state taxes.  The law, which took effect April 23, requires that out-of-state Web retailers collect sales taxes from customers in the state if the retailers have New York-based representatives soliciting business on their behalf. The state considers Amazon and other retailers to be subject to this law because they have "affiliate" marketing arrangements.   Amazon alleges the law violates several aspects of the U.S. Constitution because it is "impermissibly vague and overbroad" in its requirement that Amazon, which has no physical presence or employees based in New York, to collect sales taxes.

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Fascinating summary of four cases discussing the enforceability of click-through licenses and other contracts over at the E-Commerce and Tech Law Blog.  The gist of the cases is that if you're EULA is well drafted and someone clicks-through the agreement, it's likely to be enforceable (even if you're a company that most people would want to "get").  On the other hand, if the terms of the contract aren't available, the contract is contradicted by the sales person, or the customer is rushed through the process, courts may not enforce what would otherwise be an enforceable contract.  The fact situations of the cases are amusing in their errors (the contract wasn't included in the box, a kiosk that was supposed to link to the terms of the contracct wasn't connected to the Internet, the button for "assent" to the contract was labeled "print", etc.), but they reflect a consistency in the jurisprudence on the effectiveness of electronic contracting, namely that EULAs, click-throughs and other electronic contracts aren't enforced only when someone tries to get cute a la Douglas.  If a company will just enact a simple on line contracting policy and be consistent in its enforcement, it is unlikely that a contract will be unenforceable.

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"Interesting" case filed in the Northern District of Florida earlier this month.  Professor Moulton of the University of Florida and Faulkner Press, the publisher of his e-textbooks filed a copyright infringement lawsuit against Class Notes ("Einstein's Notes").  Professor Moulton alleges that Einstein's Notes, one of these organizations that essentially sells crib notes for college classes "slavishly" copied the film study questions and exam practice questions prepared by Professor Moulton and marketed by Faulkner Presss.  Setting aside the self-importance one must have to both file a copyright registration on one's lectures and license the rights to the lectures to a publisher, so far we have a garden variety copyright infringement lawsuit -- albeit in an unusual environment.  The complaint takes it one step further, however, and argues that the typed lecture notes included as part of the Einstein's Notes packet are a derivative work of Professor Moulton's lectures.  In other words, Professor Moulton alleges that a student's notes of a professor's lecture constitutes copyright infringement (although Professor Moulton's attorney suggests that this would be protected by fair use).  This is even more interesting in this case because Professor Moulton suggests that fixation of the lecture occurred through his notes in his lecture that he made to his transparency.  Setting aside the attempt of Professor Moulton to get rid of a bottom feeder trying to facilitate cheating students, the concepts underlying the lawsuit would have significant consequences for any note taking -- everything from Cliff's Notes to commentary on public discourse.  The complaint is here. 

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